All B&C® News

B&C’s Sheryl L. Dolan and Lisa R. Burchi were featured in a Bloomberg BNA Daily Environment Report story “Clear Supply Chain Roles, Responsibilities Help Avoid FIFRA Violations, Attorneys Say,” which is available in its entirety online, and is excerpted below. Copies of the webinar presentation slides, “EPA's Supplemental Distribution: Enforcement Actions Are Buzzing: How to Avoid Getting Stung,” are available by contacting chad.howlin@lawbc.com

“Pesticide registrants, companies that produce pesticides under contract for registrants and supplemental distributors should clearly distinguish their related but separate roles and responsibilities to avoid running afoul of the Federal Insecticide, Fungicide, and Rodenticide Act's requirements for supplemental distribution, attorneys from two law firms said July 23.

Lisa Burchi and Sheryl Dolan, with Bergeson & Campbell, P.C., and Jon Jacobs, cofounder of Jacobs Stotsky PLLC, spoke during a webinar, “EPA's Supplemental Distribution: Enforcement Actions Are Buzzing: How to Avoid Getting Stung.” Jacobs spent nearly 26 years in the Environmental Protection Agency's Office of Enforcement and Compliance Assurance before cofounding his law firm.

The webinar was spurred by penalties the agency has assessed since 2012, when its National Program Managers Guidance directed EPA regional inspectors that enforcing compliance with FIFRA's supplemental registration requirements was a mandatory focus area. Similar language is found in the agency's Fiscal Year 2014 guidance.

Compliance with the EPA's requirements is seemingly straightforward and involves following basic business practices such as being clear about who is responsible for what tasks and routine communications among all players, Dolan told Bloomberg BNA after the webinar.

Yet violations can occur unintentionally in the complex supply chain that exists among pesticide registrants, the companies that make the registered pesticide—often toll manufacturers that work under contract with registrants—and supplemental distributors that distribute and sell the product, Dolan said.

Another common problem that arises in the pesticide supply chain involves the blurring of the legally distinct responsibilities of a toll manufacturer and a supplemental distributor, Burchi said.

Under FIFRA, supplemental distributors are not allowed to make, package or label a pesticide, she said.

Toll manufacturers can, indeed often do produce, package and label pesticides, Burchi said. They undertake those responsibilities, however, under contracts that are worked out with the pesticide registrant.

Yet sometimes one company may take on the responsibilities of making and distributing the pesticide on behalf of the registrant and fail to ensure it has legally distinguished those obligations, she said.

A contract with a toll manufacturer may spell out specific suppliers of various active and inert ingredients in the pesticide, Dolan told Bloomberg BNA. The contracts also can spell out the concentrations of specific ingredients that the EPA has approved, she said.